H1B Travel Ban Stays, Family GC Ban Lifted by Biden (Work Visa Suffers!)

Trump travel ban executive order - H1B employees of lawsuit members eligible - get letter from employer. H4, L2 Dependents can get visa if primary H1B, L1 in US.

Anil Gupta
  By Anil Gupta    Updated  1 Mar, 21


Update 24 Feb 2021: Joe Biden was expected to end the H1B travel ban by issuing an executive order but he has only lifted the ban for Family Green card applicants and not work visas.

  • As per the executive order signed by Biden, it revokes section 1 of proclamation 10014 and 10052 travel bans. The work visa holder ban is part of section 2 and hence still stays active.
  • Section 1 deals with family green card, diversity lottery and other such immigrant visas.

People who had high hopes from Biden from the high skilled community have lost hopes. The current H1B, L, and J visa ban will continue until Mar 31, 2021.

Earlier in Dec 2020, Trump had extended for H1B workers till Mar 31, 2021.


USA H1B Travel Ban Rules App >

US embassy is issuing H4, L2, and J2 visas if they are open or they have given an emergency appointment. The new visas issued during the travel ban period have the annotation as:

NIE UNDER P.P. ON RISK TO LABOR MARKET“.

See this sample H4 visa issued by US embassy in India on 31 July 2020:

USA h4 visa issued-with travel ban annotation
USA h4 visa issued-with travel ban annotation

Travel Ban

Ban Term: June 24, 2020 to Mar 31, 2021 mid-night 11:59 PM ET.

Trump signed the executive order to ban work visa holder entry to the United States on June 22, 2020.

J visa holders who are an intern, trainee, teacher, camp counselor, au pair, or summer work travel program are banned.

USA travel ban - no new visa form 221g till ban end
USA travel ban – no new visa form 221g till ban end

Can I Travel? Check using App


USA H1B Travel Ban Rules App >

Rules Snapshot

#1 Currently outside the USA without a valid visa stamp

Travel ban on the entry until Mar 31, 2021. The Visa application will not be approved even if the US embassy reopens until the entry ban is active.

The embassy will issue form 221g to hold visa issuance until the ban is active.

US citizens can travel but the ban language is not clear about H4 + US citizen combination.

The State travel department clarified on July 16 that dependents of H1B, L1, and J1 can apply for H4, L2, and J2 visa if primary is currently in the US.

#2 Currently outside the USA with a valid visa stamp

You can enter the USA with a valid stamped visa. If you travel outside the USA, you can return if you have a valid stamped visa.

#3 H-1B lottery
(OPT, F1 to H1B and other cases – 2020-21 season starting Oct 1, 2020)

  • Currently, Outside USA – You cannot enter the US until the ban is active. A visa stamp will not be issued even if the US embassy reopens. The application will be kept in form 221g admin processing.
  • Currently inside the USA – Not affected if you filed as a change of status. If you have applied in consular processing, you can file the H1B amendment with change-of-status after Oct 1.

#4 H1B extension, transfer, amendment, change of status

  • Currently inside the USA – People currently inside the US are safe. USCIS will approve extension, transfer, amendment, or COS as usual.
  • Currently outside the USA – You can file the extension, transfer, amendment petition with USCIS but will not get visa approval from the US embassy to travel till the ban is active. The embassy will issue form 221g until the ban is active.

#4 i485 AOS, i485 EAD, Green Card Applications

You can enter the US with a valid Green card. You can travel and return to the US too.

The travel ban affects the pending green card applications outside the USA.

  • Currently, inside the USA – Green cards will be approved.
  • Currently, outside the USA – Green cards may not be approved until the order stays Active. NVC may not schedule an interview appointment until the ban is active.

I-130, i140, PERM, EB-1, EB-2, EB-3 are not affected by travel ban.

#5 Diversity Visa

  • Currently, outside the USA – Your visa will not be issued. You cannot enter the US until you have a stamped visa.
  • Currently, inside the USA – You are safe

USCIS, US Embassy Rules

Travel.state department confirmed that a new visa will not be issued for the visa types mentioned in Trump’s proclamation.

  • US Embassy will issue Form 221g: The US embassy in Singapore and India (All consulates including Hyderabad, Delhi, Mumbai, Chennai, etc.) have told that they will issue form 221g denials until the ban is active for any pending and new visa applications.
  • USCIS officially announced that the order will not affect people currently working in the US on H1B, L1, L2, or J1 visas. Extensions and renewals can be filed as usual with USCIS.

Exceptions

H1B Visa for Non Members (of Lawsuit)

You should check with your employer to know if they are a member of this litigation. Your employer will need to write it on the official letterhead and then you need to take it to your H1B visa interview.

The Visa officer will verify and if your employer is part of this litigation, you are considered eligible for getting an H1B visa and traveling to the USA during the travel ban period.

You have to follow State Travel department guidelines:

  1. H1B/L1 can apply for a visa if you are still working for the same H1B/L1 employer, same job role, and position for whom you were working in the USA before your travel.
    1. If you filed an H1B transfer or an amendment after June 22, 2020, and now want to return to the US, then, you are not allowed until the ban is active.
  2. H1B/L1 technical specialist or senior manager and satisfy at least 2 of these (depends on consular officer discretion and rules are complex):
    1. If you can work and are working remotely from outside the USA, you are not eligible to travel. (tough for IT jobs to prove).
    2. You are a senior-level employee who is vital to the management and success of the overall business enterprise.
    3. Your salary exceeds the prevailing wage rate by at least 15 percent. (can be satisfied if you have a good salary).
    4. You have a doctorate or professional degree along with many years of relevant work experience. (probably an Einstein).
    5. If your H1B employer will face financial hardship, or cannot continue its business, or a delay to the employer’s ability to return to its pre-COVID-19 level of operations without your services. (quite difficult to prove!).    
  • Employees of companies who are part of the H1B lawsuit.
  • Existing stamped H1B, J-1, L-1 visa holders are allowed to enter the US.
  • Dependent visa holders like H4, L2 are allowed to travel if their primary spouse is already in the US. Interestingly, H4 EAD and L2 EAD are not affected at all.
  • H1B extension, transfer, amendment, change of status for people who are already in the US will not be affected.
  • Jobs in Food Production (farm workers) using the H2B visa and supply chain.
  • Healthcare professions – Anybody working in a medical profession or a health care company and directly involved in treating COVID-19 patients. Example: A doctor or a nurse.

Effects on India EB2 Queue

The Employment-based visa bulletin moved the dates for EB-1, EB-2, and EB-3 faster than ever in Oct 2020 visa bulletin.

The chances are very good for a family-based green card spillover in Oct 2021 as well if the US embassies stay closed until the COVID-19 cases keep rising.

The family green cards will not be issued till the ban is active end and these may accumulate and spillover in Oct 2021 again into employment-based queues.

I have shared my estimates on EB2 Indian prediction page.

MigrationPolicy estimates that this work visa travel ban will affect at least 219,000 workers who will not be allowed to enter the US labor market even if their work petition has been approved legally by USCIS.

FAQ

Will dropbox be allowed?

Dropbox should be allowed as it appears from the executive order language but you will be issued a form 221g until the ban is active.

Check your Dropbox eligibility.

How H1B COS be Filed after H1B Lottery Consular Approval without going out of the USA?

You can file the H1B amendment with a change of status as soon as Oct 1 if you have got the H1B lottery approval with consular processing.

Can i Use AVR (Automatic Visa Revalidation) from Canada/Mexico?

CBP officer at the Canadian border confirmed that the AVR process is not affected by Trump’s travel ban order.

Are i140, i485, PERM Affected?

i140 and PERM are not affected. You can file them normally and get approval too.

They are going to pause the approvals of the green card (immigrant visa) issuance by the US embassy.

The i485 AOS (adjustment of status) will continue to be approved as usual if you are in the US.

Can H4 visa be issued if H1B is already in the USA?

H4 visa can be issued by the US embassy if the primary H1B is already in the USA.

This will be based on the visa officer’s discretion though.

The executive order has given the authority to US embassy interviewing officers to use their own discretion in these kinds of cases.

Is H4 EAD banned?

H4 EAD has not been banned or revoked in Trump executive order.

L2 EAD can also work normally.

You can apply H4 EAD and L2 EAD normally while you are in the USA.

Are F-1 students, OPT, STEP OPT, TN, B1/B2, E-3, O-1 visa affected?

F-1 students, OPT, STEP OPT, TN, B1/B2, E-3, O-1 visa are not affected by Trump’s travel ban.

Can I use the Old Employer H1B visa stamp if its still valid?

You can use an old employer’s valid visa stamp to enter the US even if you have changed the employer after H1B transfer.




Author

Anil Gupta
  By Anil Gupta           

Recent discussion on forum

  1. pw2980
    pw2980

    Hi Anil, you haven’t talked about this section of the EO:
    (b) The Secretary of Labor shall, in consultation with the Secretary of Homeland Security, as soon as practicable, and consistent with applicable law, consider promulgating regulations or take other appropriate action to ensure that the presence in the United States of aliens who have been admitted or otherwise provided a benefit, or who are seeking admission or a benefit, pursuant to an EB-2 or EB-3 immigrant visa or an H-1B nonimmigrant visa does not disadvantage United States workers in violation of section 212(a)(5)(A) or (n)(1) of the INA (8 U.S.C. 1182(a)(5)(A) or (n)(1)). The Secretary of Labor shall also undertake, as appropriate, investigations pursuant to section 212(n)(2)(G)(i) of the INA (8 U.S.C. 1182(n)(2)(G)(i)).

    Do you think it will make Eb-2, Eb-3 process more difficult? more denials?
    Thank you


  2. Anil2k
    Anil2k

    Same situation here - @Anil.Gupta: just curious on what basis do you think the spouse will be allowed for visa interview if h1b is in us? I’d love it if that is the case but the order doesn’t mention that.


  3. P_Shah
    P_Shah

    Hi Anil,
    Now that FB GC’s won’t be issued abroad at embassy, Would that move PD faster for FB GC application filing chart dates? If yes, how would that look like for F4?


  4. rak77
    rak77

    Hi Anil,

    I am currently in USA and My H1B visa is expiring on 8/2/2020. My employer is working on filing my extension in next 15 days.
    Does this EO will restrict the filing of H1B extensions for the people who are already in USA

    Thank You
    Ash


  5. Aish
    Aish

    Hi Anil,

    I am in India since Feb2020 and have joined Indian counterpart of the US company I was working before Feb2020. I am working for same position/client. My approved i129 shows 2b checked. I have valid i797b and cancelled visa appointment. Am I exempted from travel ban as per changes on Aug12 on Travel state site? Please confirm.

    Thanks for you help


  6. Ram001
    Ram001

    My H1B Cap exempt petition was approved on May 19 2020. I was in Denver in 2018 in H1B and my extension was denied. My employer filed new cap exempt petition from india in 2019 for the same location. For Question 2 under part 2 in my I-129 petition, the check box was checked for “New Employment” as it is a new cap exempt petition.
    Please advise, if I’m eligible to get Visa stamp before 12/31/2020 as per the new update from trump.


  7. Bill
    Bill

    @anil_am22 What impact will the latest GC/Visa ban till Feb, 2021 have on the priority dates for EB2/3 for India?


  8. deepu_kanna
    deepu_kanna

    Hi Anil @anil_am22, Happy New year. Hope you are doing well. I believe the page on am22tech has contradicting statements.

    Statement-1 --> In the picture comparing OUTSIDE USA vs INSIDE USA, it is mentioned that New Visa will not be stamped.

    Statement-2 --> It is also mentioned, Dropbox appointments are available if you are eligible at the beginning of the page.

    Isn’t it true that a person who was present in the US on the date of the proclamation and eligible for Dropbox can now travel outside the US and get a visa stamp? Can you please confirm whether I misunderstood the information?


  9. anil_am22
    anil_am22

    Yes, you are right, the image shows the time stamp as June 2020. It needs to be updated.

    The article has been updated with new rules that came up after the initial ban was signed in June 2020.

    The travel ban rules app has also been updated and shows most recent rules and updates.

    You are right, picture needs an update. Thanks for sharing.


  10. deepu_kanna
    deepu_kanna

    @anil_am22 Thanks for confirming that Anil.

    I also noticed that the travel ban app needs some update.

    When I choose that I was physically present in the US on June-24, it results in stating that you can apply visa only if your case falls in exceptions.

    I believe that the travel ban itself shouldn’t apply to this case. It only should output the option to check the Dropbox eligibility ??


  11. anil_am22
    anil_am22

    Yes, you should be able to apply visa stamp if you are going back to work for same employer and same job position.

    H1B transfer and amendment cases after June 24 are still banned.

    That’s why it says if your case falls in the exception.


  12. deepu_kanna
    deepu_kanna

    Thanks for the response @anil_am22.

    I believe your statement related to transfers and amendments applies to someone who was not present in the USA on 6/22.

    I have read recent posts wherein there was a change in employer after 6/22. Since they were physically present in the USA, they still got their visa stamped using Dropbox appointments.

    All the list of exceptions is for someone who was not present in the USA on 6/22 according to the official link and it clearly states that the proclamation doesn’t apply to someone who was in the US on 6/22.

    am22 is the source for many people like us and you are doing a commendable job in providing us the latest updates. Please request you to check if my understanding is correct and update the travel ban app if needed.


  13. anil_am22
    anil_am22

    As per my understanding, transfer, amendment cases are still part of exception if you travel.

    If you can share a real life example, then i can try to validate it. I am personally not aware of any such case and hence can’t say if US embassy is allowing it.


  14. athias
    athias

    Hi Anil,
    The travel ban which has been extended till March 31st, does it impact H1B cap exempt filings as well?
    Am in India and my Perm was recently approved and i140 is in progress. I believe Am eligible for drop box (Previous visa stamping valid till March 2020). If I have i140 approved, can I file an H1B Cap Exempt in Premium and get a decision in 15 days? Or that has been held by the ban as well? Please clarify and thanks in advance


  15. Sonammittal
    Sonammittal

    As per news travel ban has been revoked… can you elaborate this?? My visa type is F21… am i now eligible to submit my 221 g documents???


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